Copyright law should distinguish between commercial and cultural uses

In theory, there's just one set of copyright rules and they apply to everyone, from Sony Pictures to your neighbour's eight-year-old who wants to photocopy his Spider-Man comics and sell them to the other kids.

Regardless of who wants to make a new Spider-Man comic, movie or other derivative work, that person has to hire a lawyer, have that lawyer call up Marvel Comics, set up a call or a face-to-face, negotiate a contract, sign it, pay a fee, and report on their ongoing uses, opening their books for auditing and inspection.

Sony Pictures can do this. It can send lawyers to Marvel and Marvel will send its lawyers back to Sony. Everyone gets to sit at a long table and hammer out the deal, then they issue a press release and go into production.

But little Timmy can't do it. He never could. And yet when you talk to comic book creators, they'll tell you that they got started by drawing copies of other peoples' work.

Musicians start by playing the music they love. Painters start by copying other painters. Filmmakers try to recreate the effects and scenes they've been inspired by in big-screen releases.

Aping each other

This seems pretty basic: even primates watch each other and copy (or, if you will, "ape") each other, so when one monkey figures out how to improve a potato by dipping it in salt water, the whole gang follows suit.

We copy each other to learn and to improve - it's one of the things that makes us human, because we're a lot better at it than chimps.

It's not just Timmy's Spider-Man comic. The babysitter brings over a bag of DVDs to keep the kids quiet; you organise a singalong at the pub; you make a mix tape as part of an awkward teenaged mating ritual: all these uses fall on the wrong side of copyright law unless they are preceded by a complex legal dance of the sort that mere mortals rarely even glimpse, let alone partake of.

Through most of copyright's history, we had two de facto systems: industrial regulation (governing what big companies did with each others' stuff) and folk-copyright (the rules of thumb that most of us understood to be true).

Spider-Man knock-off

This meant that it was OK to photocopy a Dilbert toon for your cubicle wall, make a copy of a record for your pal, or publish your own low-rent Spider-Man knock-off in the school newspaper.

Folk-copyright didn't have a lot of legal authority - it was completely backwards on any number of subjects - but it worked. The likes of Time Warner, Sony, Universal or EMI weren't going to bust you for what you got up to at the OAPs' campfire singalong, and not just because they'd look foolish for doing so.

It just wasn't cost-effective to hunt down all the kids flogging fan-fiction Star Trek episodes in the dealer's rooms of small regional science fiction conventions. Aside from the negative PR, there was the sheer cost of wasting billable lawyer-hours on something that couldn't possibly make you any money.

Then came the internet, which introduced two critical changes: it made it easier for folk-users of copyright to find each other and spread their creations and copies farther than ever, and it made it easier for enforcers to find them and threaten them, especially once tools like the "notice and takedown" regime in the European Union Copyright Directive and the US Digital Millennium Copyright Act came on the scene.

YouTube dance

Now you have billionaire media empires behaving as though parents should get a licence for a Prince song before they upload a YouTube video of their adorable toddler dancing to it.

They are also acting as though fan fiction writers should be applying for a licence too - along with karaoke singers, would-be painters and, yes, the OAP picnickers who've uploaded the shakycam video of last weekend's knees-up in the church basement.

This is a genuinely radical idea: individuals should hire lawyers to negotiate their personal use of cultural material, or at least refrain from sharing their cultural activities with others (except it's not's really culture if you're not sharing it, is it?).

It's also a dumb idea. People aren't going to hire lawyers to bless the singalong or Timmy's comic book. They're also not going to stop doing culture.

New regime

We need to stop shoe-horning cultural use into the little carve-outs in copyright, such as fair dealing and fair use. Instead we need to establish a new copyright regime that reflects the age-old normative consensus about what's fair and what isn't at the small-scale, hand-to-hand end of copying, display, performance and adaptation.

A diverse and extremely sensible group of people are doing just this: the Access to Knowledge (A2K) treaty is a proposal from the World Intellectual Property Organization (WIPO) to set out the rights and responsibilities of archivists, educators and people who provide access to disabled users of information.

The drafting group - which is open to the general public - includes representatives of creators' groups (tellingly, no one from the corporations that buy creators' works have taken part), disabled rights groups, technical standards bodies, civil rights groups, even medical rights groups like Médecins Sans Frontières.

A2K is at the top of the WIPO agenda. It's the first breath of sanity in the copyright debate. Let's hope it's not the last one.